Thursday, August 02, 2012

Direct Broadcast Satellite (DBS) service offers a competitive choice to consumers in today's video marketplace. But the competitiveness of DBS depends on consumers' ability to install dishes without undue burdens. Local government regulations that unreasonably impair dish installation in privately owned common areas undermine consumer choice and competition in the video market. The FCC should make clear that federal law prohibits those kinds of restrictions.

In passing the 1996 Act, Congress sought to ensure that DBS could effectively compete against incumbent cable operators, giving consumers more choices. To that end, Congress charged the FCC "to prohibit restrictions that impair a viewer's ability to receive video programming services through...direct broadcast satellite services." The FCC's over-the-air-reception-device (OTARD) rules preempt restrictions on the installation of satellite dishes that result in unreasonable delays or costs.

The FCC's OTARD rules clearly preempt unreasonable restrictions on dish installation and use in areas that are within the exclusive use or control of the consumer. In "FCC Should Act Against Unreasonable Satellite Dish Restrictions," I blogged about how the City of Philadelphia's ordinance restricting satellite dishes on the exterior walls of family dwellings appear to restrict installation on areas within consumers' exclusive control and appear to shift the burden of proving compliance with local registration requirements on the consumer. For those reasons, I suggested that Philadelphia's ordinance appears contrary to the OTARD rules.

But questions are now being raised about the scope of permissible local regulations regarding satellite dish installation on private property in common areasnot clearly subject to individual consumers' exclusive control. An ordinance recently passed by the City of Boston states that no antennas may be installed in common areas anywhere in the city without permission of its inspection department. And the FCC recently accepted public comments on a DBS industry petition asking the FCC to clarify that its OTARD rules preempt restrictions imposed by state or local governments in common areas where private property owners consent to dish installation.

The letter of the law passed by Congress contains no distinction between areas within a consumer's exclusive use and common areas. Nonetheless, the FCC previously declared that its OTARD rules apply to areas within a consumer's exclusive control but not to common areas. This decision was made with sensible deference to the rights of property owners and homeowner associations to make their own decisions about how common areas should be used. A building owner may choose to specially lease space in a common area for dish installation because its location offers better reception. Or a homeowner or condo association might adopt bylaws allowing dish installation in common areas under certain conditions.

Further, the FCC previously recognized that prohibiting all private restrictions on dish placement in common areas would amount to a regulation-imposed easement on private property. Also, prohibiting property owner restrictions regarding dish placement in common areas would likely have triggered constitutional questions involving takings of private property under the Fifth Amendment.

A dispute between DBS providers and local governments exists over whether state and local government police power concerns receive deference under current FCC policy when it comes to common areas. The FCC should now take the opportunity to resolve this dispute. It should spell out that its OTARD rules preempt state and local laws that unreasonably impair dish installation in common areas.

Promoting a competitive video marketplace to serve consumers is the overarching purpose of congressional policy. Congress expressly called on the FCC to preempt restrictions on dish installation as a means to furthering that policy. Local government restrictions that unreasonably impair dish installation in common areas run contrary to congressional intent. And those restrictions come within the terms of the FCC's mandate.

Of course, local governments and related associations have voiced opposition to OTARD preemption. They seek to defend state and local government police powers. And they claim that preempting only government restrictions on dish placement in common areas (and not private restrictions) results in unequal treatment.

State police power concerns, while deserving careful consideration, should not tip the scales against preemption. Even if OTARD rules were to apply to state and local government restrictions regarding dish installation in common areas, OTARD would not categorically ban all such restrictions. OTARD would, however, prohibit restrictions that unreasonably delay installation or use, unreasonably increase costs, preclude reception of a quality signal, or apply in a discriminatory manner. State and local governments would retain authority to pass restrictions on dish installation based on legitimate concerns such as health and safety. OTARD would not shield genuine public nuisances. But OTARD would require state and local governments to bear the burden of justifying their necessity and scope. Preemption would not impose any particular mandates on local government or commandeer their officers to implement federal policy.

The distinction between private property owners' restricting use of their own property and government restricting use of such property provides all the reason in the world to treat the two kinds of restrictions differently. This public/private distinction is directly traceable to the U.S. Constitution, which was established to limit government power and protect individual rights. Constitutional safeguards ensure that property rights do not exist at government's pleasure whenever it purports to act for the general welfare.

State and local regulations conflicting with federal laws are subject to the U.S. Supreme Court's preemption jurisprudence, but private property rights are not. Individual rights are subject to different jurisprudential standards reflecting different constitutional imperatives. So there is every reason for federal agencies, such as the FCC, to ensure that implementation of congressional policy provides special protections for individual rights, including property rights.

Prohibiting state and local government regulations that unreasonably impair satellite dish installation in common areas reconciles Congress's policy for furthering a competitive interstate video services market with private property rights. The FCC should make clear the preemptive operation of its OTARD rules when it comes to local government restrictions on dish installation in common areas.